ALERT: President Obama Makes Important Recess Appointments To NLRB, EEOC

On March 27, while Congress was in recess, President Barack Obama used the recess appointment power to fill 15 vacancies, including filling two of three open seats on the National Labor Relations Board, three open positions on the Equal Employment Opportunity Commission, and the EEOC General Counsel position. In making the appointments, President Obama stated that while the United States Senate had the power "to approve or disapprove of [his] nominees . . . if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility," he would "act in the interest of the American people and fill these positions on an interim basis."

Congress entered recess on March 26 and will return April 12. Under Article II, Section 2 of the United States Constitution, "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The recess appointments made on Saturday will remain in effect until the end of the next Session of the Senate in late 2011.

National Labor Relations Board

President Obama appointed Craig Becker and Mark Pearce to two of the three vacant seats on the NLRB, but he did not take any action on the also-pending nomination of Brian Hayes to fill the third open seat on the five-member NLRB. All three of the NLRB nominees were nominated between April and July 2009 and have extensive labor experience. Mr. Pearce has been a labor practitioner for all of his career, including 15 years as an attorney and District Trial Specialist for the NLRB, before becoming a private practice labor lawyer representing unions. Prior to Mr. Becker’s nomination, he served as Associate General Counsel to both the American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO") and the Service Employees International Union ("SEIU"). Mr. Hayes serves as the Republican Labor Policy Director for the Senate Committee on Health, Education, Labor and Pensions.

During the confirmation process, Mr. Becker’s nomination was sharply debated, with Senator John McCain calling Mr. Becker "the most controversial nominee I’ve seen in a long time" and promising to "do anything I can to block his nomination," including eventually placing a hold on the nomination, which stalled the process for 2009. See President Again Nominates SEIU’s Becker to Serve a National Labor Relations Board, 13 Daily Labor Rep. (BNA) A-17 (Jan. 22, 2010).

When discussion of nominations resumed in January 2010, the U.S. Chamber of Commerce called for a hearing on the Becker nomination, which was also opposed by the National Association of Manufacturers, the Wall Street Journal editorial board, and others. See Chamber Seeks Senate Hearing on Becker, as 66 Labor Law Professors Express Support, 14 Daily Labor Rep. (BNA) A-1 (Jan. 25, 2010). In response, over 60 labor law professors voiced their support for Mr. Becker’s nomination. Id. Showing strong support for organized labor, at Mr. Becker’s hearing, he described the proposed Employee Free Choice Act’s card check provisions as an "alternate route" to board certification of representatives, rather than the current requirement of a secret ballot election. He also described his statements in a 1993 law review article that "employers should be stripped of any legally cognizable interest in their employees’ election of representatives" as part of an article that was "intended to be provocative" and stated that "employers clearly have the right to express their views" on union representation. Help Committee Questions Becker Over Past Statements in Articles¸ 21 Daily Labor Rep. (BNA) A-15 (Feb. 3, 2010). On February 9, 2010, Senate Democrats fell eight votes short of the 60 votes necessary to invoke cloture and move to a final vote on Mr. Becker’s nomination.

The recess appointments of Mr. Becker and Mr. Pearce are notable for several reasons. First, nominations to the NLRB traditionally have been done in a manner allowing both parties to nominate members, treating the nominations as a bipartisan package. The same process was initially applied to these nominations, making the recess appointment of Messrs. Becker and Pearce—but not Republican choice Mr. Hayes—unusual. It is widely believed that the White House took this step in order to force Republicans in the Senate to consider the possibility of approving the entire package, or face the prospect of a 3-0 Democratic Board when current Member Peter Schaumber’s term expires in August of this year, at the same time that the NLRB’s General Counsel’s term also expires. Second, although the White House announced that these nominees had not received proper attention, thereby necessitating a recess appointment, Mr. Becker’s nomination was addressed by the Senate, including a hearing and cloture vote in which several Senate Democrats voted against proceeding with a vote on the nomination. But third and most importantly for employers, the Board now has a 3-1 Democratic majority, which will likely end the period of a largely inactive Board where primarily non controversial issues were addressed. Issues involving an employer’s and union’s right to negotiate principles of organizing and initial collective bargaining prior to certification, access to employer property for organizational activities by off-duty employees, bannering cases, independent contractor status, and many others areas of law are currently pending before the Board. Moreover, although the Board has traditionally refrained from reversing precedent absent full membership, a number of other issues decided in the last several years, including access to employer email systems, the NLRA’s definition of "supervisor," and the status of individuals who accept employment intending to organize a workforce, known as union salts, may be reversed by a Democratically controlled Board. With the recess appointment of Mr. Becker and Mr. Pearce, employers should expect to see a reinvigorated Board and with it a number of significant developments under the National Labor Relations Act.

Equal Employment Opportunity Commission

President Obama’s 15 recess appointees also include four long-standing pending nominations for the Equal Employment Opportunity Commission: Jacqueline A. Berrien to serve as chair, Victoria A. Lipnic and Chai R. Feldblum to serve as EEOC commissioners, and P. David Lopez to serve as general counsel. All of the Commission nominees were nominated between July and November 2009.

Ms. Berrien currently serves as Associate Director-Counsel of the NAACP Legal Defense and Educational Fund, and previously served as a Program Officer in the Ford Foundation’s Peace and Social Justice Program. She has also worked as a staff attorney with the Lawyers’ Committee for Civil Rights and the American Civil Liberties Union, has taught trial advocacy programs at Fordham and Harvard law schools, and served on the adjunct faculty of New York Law School.

Ms. Lipnic is currently of counsel to the law firm of Seyfarth Shaw in Washington, D.C. She was the U.S. Assistant Secretary of Labor for Employment Standards in the Bush administration from 2002 to 2009. Ms. Lipnic’s experience also includes serving as counsel to Republican members of the House Education and Labor Committee, and as in-house counsel for labor and employment matters to the U.S. Postal Service.

Ms. Feldblum has taught as a law professor at the Georgetown University Law Center since 1991 and founded the Law Center’s Federal Legislation and Administrative Clinic. Previously, she served as legislative counsel to the AIDS Project of the American Civil Liberties Union. More recently, she testified before Congress and helped draft language for the ADA Amendments Act of 2008. Ms. Feldblum also is a leading advocate for the advancement of lesbian, gay, bisexual, and trangender rights.

Mr. Lopez has served at the EEOC for 13 years, where he is currently a supervisory trial attorney with the EEOC’s Phoenix District Office. Prior to joining the EEOC, Lopez served at the Civil Rights Division, Employment Litigation Section, at the Department of Justice, and previously worked in private law practice.

The recess appointments of Berrien, Lipnic, Feldblum, and Lopez restore the EEOC to full capacity, with a firm Democratic majority. This gives the Commission sufficient votes to enact a number of existing priorities. Most significantly, the Commission will now be able to promulgate final regulations interpreting the Americans with Disabilities Act Amendments Act ("ADAAA"). Passed in 2008 with bipartisan support, the ADAAA reflected a careful balance between the interests of the business community and the disability community. The EEOC’s proposed regulations seek to expand the reach of the ADAAA beyond that intended by Congress in several significant ways, but were stalled due to the presence of only two members on the Commission. Acting EEOC Chair Stuart Ishimaru, a Democrat, voted in favor of the proposed regulations, while Republican Commissioner Constance Barker voted against them. President Obama’s recess appointments now give the EEOC the votes it needs to promulgate final regulations in this area.

The Commission can be expected to aggressively pursue other existing top priorities in 2010. The first is a shift in enforcement emphasis from individual cases to cases in which the EEOC can claim to be combating systemic discrimination of some sort. This initiative has the practical effect of transforming routine individual cases into large class actions, and vastly increasing the cost of defending such matters. Second, the EEOC has launched a five-year program known as its E-RACE initiative ("Eradicating Racism and Colorism From Employment"). This program targets certain otherwise facially neutral employment criteria that the EEOC believes may have a disparate impact on people of color, including hiring tests, credit and background checks, and arrest and conviction records. As part of this initiative, the EEOC plans to collect more information from employers, such as demographic data, to identify litigation opportunities and increase media exposure in race discrimination cases.

As with the changes to the NLRB, the recent additions to the EEOC will undoubtedly lead to a more active EEOC.

This alert is intended to provide a brief synopsis of recent developments in the law and should not be construed as legal advice. For more information, please contact your Jones Day contact, Lawrence DiNardo at 1.312.782.3939, Mark Temple at 1.832.239.3939, or Jacqueline Holmes or Sarah McClure, at 1.202.879.3939.